IN THE SUPREME COURT OF NORTH CAROLINA
No. 78A24
Filed 22 August 2025
JENNIFER C. DURBIN
v. MATTHEW L. DURBIN
Appeal pursuant to N.C.G.S. § 7A-30(2) (2023) from the decision of a divided
panel of the Court of Appeals, 292 N.C. App. 381 (2024), reversing an order entered
on 8 July 2022 by Judge Julie Bell in District Court, Wake County. Heard in the
Supreme Court on 29 October 2024.
Jackson Family Law, by Jill Schnabel Jackson, for plaintiff-appellant.
Fox Rothschild LLP, by Kip D. Nelson, for defendant-appellee.
RIGGS, Justice.
In child custody matters, after the trial court enters a custody order, that order
is only subject to modification in the face of a substantial change in circumstances
affecting the welfare of the child. N.C.G.S. § 50-13.7 (2023). In this case, we are
asked to explore the contours of what constitutes a substantial change in
circumstances. Specifically, the question presented to us is whether escalating
conflict on the part of one or both parents that—in the view of the trial court—risks
injury to the child constitutes a substantial change in circumstances justifying
modification of an existing child custody order. We conclude that it does. Although DURBIN V. DURBIN
Opinion of the Court
conflict is common in child custody cases, when the conflict escalates and poses a risk
to the safety of the children, such a situation represents a change in circumstances
opening the door to a custody order modification by the trial court. Thus, we reverse
the opinion of the Court of Appeals and affirm the trial court’s modification order.
I. Factual & Procedural Background
Jennifer (the Mother) and Matthew (the Father) Durbin married in 2007. They
had two children: a son born in 2008, and a second son born in 2010. The parties
separated in 2016 and entered into a consent order dictating child custody and child
support on 9 February 2017. In the consent order, the parties agreed to share joint
legal and physical custody of the children. One of the children has a medical condition
requiring daily medications. For that reason, the consent order specifically required
both parents to “provide each other with any medication which the child is taking at
the time of the transfer of physical custody” and provide the other parent with
“sufficient information to allow the other party to obtain refills of that medication.”
The consent order also required providing information about medical emergencies,
sharing information about the children’s activities and appointments, avoiding
scheduling activities for the children during the other party’s custodial time, and
other terms.
In October 2020, the Mother filed a motion to modify the child custody order.
In the motion, she alleged there has been a substantial change in circumstances
based upon changes in the parties’ jobs, changes in the children’s schedules, and,
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importantly for this case, allegations that the Father had been held in contempt of
court for violating the custody order. In short, she argued that the current custody
order was not in the best interest of the children.
Based upon an agreement by the parties, the trial court entered an order
modifying the custody agreement (2020 Order). The 2020 Order generally
maintained the terms from the 2017 consent order and maintained joint legal
custody, but the modified order required appointment of a parenting coordinator1 to
deescalate the conflict between the parents. See N.C.G.S. § 50-91 (2023) (allowing
the appointment of a parenting coordinator). The order gave the parenting
coordinator broad authority to resolve disputes between the parties and make
decisions regarding the children, including determining transition pickup and
delivery, participation in child care, bedtime, diet, clothing, recreation, and, most
relevant to this case, health care management. See N.C.G.S. § 50-92 (2023) (outlining
the allowable scope of authority for parenting coordinators).
The Father did not agree with many of the decisions made by the parenting
coordinator and believed that eight decisions made between 14 January 2021 and 13
April 2021 “created unnecessary confusion and conflict between the parties.” The
relationship between the Father and the parenting coordinator deteriorated so much
that, in April of 2021, the Father filed a motion to terminate the parenting
1 The order notes that the parties previously had a parenting coordinator before the
order was entered but there is no explanation why that parenting coordinator ended her involvement with the case.
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coordinator appointment citing “lack of reasonable progress” as the reason, with no
further explanation. Additionally, the Father filed a motion for the trial court to
review the parenting coordinator’s decisions regarding the custody schedule during
the summer of 2021. The trial court concluded that the parenting coordinator’s
decisions were reasonable. Further, the trial court found that “[t]he parties are high
conflict” and would “benefit from the continued services of a parenting coordinator.”
Thus, the trial court denied the motion to terminate the parenting coordinator.
The conflict between the Father and the parenting coordinator regarding the
children’s medical care continued and the Father refused to comply with directives
issued by the parenting coordinator. On 8 October 2021, the Mother filed a motion
to modify the 2020 Order, alleging the Father was interfering with the children’s
therapy appointments and not attending to the children’s medical needs. Specifically,
she alleged the Father refused to take one child to therapy appointments during his
custodial time, in direct violation of the parenting coordinator’s direction.
Additionally, the Father minimized the children’s medical needs and refused to
cooperate in the treatment and administration of medically prescribed medication to
address severe asthma and life-threatening allergies. The Father’s failure to
administer medication for the child’s asthma resulted in his child requiring medical
intervention to address breathing issues. In September, the parenting coordinator
filed a report detailing numerous problems with the Father’s compliance with the
custody order.
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In response to the parenting coordinator’s report2 and parenting coordinator’s
request for expedited hearing, the trial court held a hearing on 27 October 2021. The
trial court’s post-hearing order documented a pattern of escalating conflict between
the Father and the parenting coordinator. The order indicated that the Father was
unwilling to answer reasonable questions about the children’s health and responded
to requests in an unproductive and hostile manner. The order further described how
the Father was making it difficult for his children to attend therapy and refused to
administer the child’s asthma medication as prescribed or maintain a medication log
as directed by the parenting coordinator.
The trial court concluded that the Father’s refusal to comply with the
parenting coordinator’s “directive had an adverse effect on [the child’s] health.”
Importantly, the trial court concluded that the ongoing conflict affected “the health,
education and welfare of the minor children.” The trial court concluded that the
“findings constitute[d] a substantial change in circumstances warranting the entry of
a temporary custody order” modifying the 2020 Order. For these reasons, the trial
court entered a temporary custody order on 11 January 2022, giving the Mother, inter
alia, primary physical custody and “final decision-making authority” on “major
decisions” when the parties “are unable to reach mutual agreement.” The order
specifically required the parents to “comply with the [parenting coordinator’s]
2 Our review was limited by the fact that the parenting coordinator’s reports were not
included in the Record.
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directive on medication for the children.” The order also directed the parents not to
discuss the court proceedings with the children.
According to the second temporary custody order, after the October 2021
hearing, the Father notified the minor children of the changes in the custodial
schedule before the order was submitted, “causing distress to the children,” and also
escalated his conflict with the parenting coordinator when he filed a bar grievance
against her, noticed her for a deposition, and threatened to file a motion for sanctions
against her. At the request of the parenting coordinator, the trial court held another
hearing on 10 January 2022. The trial court found as fact that the Father’s actions
against the parenting coordinator were retaliatory. Although the trial court noted
that the parenting coordinator had “done an excellent job in her role,” the trial court
appointed a new parenting coordinator to reduce conflict and protect the current
parenting coordinator from “further retaliatory actions.”
The trial court held a subsequent hearing on 3 May 2022 for the motion to
modify custody and entered an order making the prior modification to the custody
order permanent on 8 July 2022 (Modified Custody Order). In the Modified Custody
Order, the trial court made findings that the conflict regarding medical care of the
child continues. The trial court also found that the Father continued to refuse to
ensure the child was taking the medication consistently in spite of the child’s
diagnosed medical condition and a directive from the parenting coordinator to log
administration of medication. The trial court also noted ongoing conflicts and that
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the “amount of conflict between the parties is not in the children’s best interest.” The
trial court concluded that the findings “constitute[d] a substantial change in
circumstances” warranting modification to the terms of the 2020 Order.
The Father timely appealed this Modified Custody Order to the Court of
Appeals. On appeal, he presented three arguments: the trial court erred by (1)
concluding there was a substantial change of circumstances affecting the welfare of
the children, (2) concluding modification was in the best interests of the children, and
(3) awarding primary decision-making authority to the Mother.
A divided panel of the Court of Appeals reversed the Modified Custody Order,
holding that the findings of fact did not support the conclusion that there was a
substantial change in circumstances affecting the welfare of the children. Durbin v.
Durbin, 292 N.C. App. 381, 382 (2024). The majority noted that the “absence of
meaningful findings as to the circumstances as they existed at the time of the 30
October 2020 consent order” hindered the review because the Court of Appeals could
not determine the circumstances at the time of the order. Id. at 394. However, the
majority acknowledged that the record, including multiple temporary orders,
presented information sufficient to determine whether a substantial change had
occurred. Id. at 394–95.
In the majority’s view, the “mere existence of an ongoing conflict” did not
support the conclusion that the “conflict adversely affects the child.” Id. at 399. The
majority concluded that the findings demonstrated that the children were insulated
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from the high level of conflict in their parent’s relationship. Id. at 398. Additionally,
the majority did not view the conflict between the parent and the parenting
coordinator as constituting a substantial change in circumstances. Id. at 399. Having
concluded that the findings of fact did not support a substantial change in
circumstances, the Court of Appeals determined that the remaining issues were moot.
Id. at 400.
The dissenting judge disagreed and would have held that the findings showed
an escalating level of conflict between the parties, primarily caused by the Father,
“interfered with important actions being taken and important decisions being made,
which negatively affected the health and welfare of the minor children.” Id. at 411
(Collins, J., dissenting). Further, she noted there was no support for the majority’s
assertion that “the trial court’s findings of fact actually suggest the children were
relatively insulated from this conflict.” Id. at 413. The Mother appealed on the basis
of the dissent.
II. Analysis
The issue here is whether an escalating pattern of conflict between the parents
and an unwillingness on the part of a parent to communicate with the other parent
and parenting coordinator to advance the welfare of the children constitutes a
substantial change in circumstances justifying a modification in custody. In this case,
we hold that the Father’s actions, and the trial court’s factual findings that document
that behavior, do establish that changed circumstance. For that reason, we reverse
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the decision of the Court of Appeals and affirm the trial court’s Modified Custody
Order.
A. Standard of Review
The “trial courts are vested with broad discretion in child custody matters.”
Shipman v. Shipman, 357 N.C. 471, 474 (2003). This discretion is given to the trial
court because of the opportunity to see the parties, hear the witnesses, and detect
nuances innate in live testimony that are absent from the printed record. Id. at 474.
If “we conclude that there is substantial evidence in the record to support the trial
court’s findings of fact, such findings are conclusive on appeal, even if record evidence
might sustain findings to the contrary.” Id. at 475 (cleaned up) (quoting Pulliam v.
Smith, 348 N.C. 616, 625 (1998)).
In addition to considering whether the “trial court’s findings of fact are
supported by substantial evidence, this Court must determine if the trial court’s
factual findings support its conclusions of law.” Id. Where we determine that the
trial court has properly concluded “a substantial change of circumstances has affected
the welfare of the minor child” and modified the custody order based upon the child’s
best interest, “we will defer to the trial court’s judgment and not disturb its decision
to modify an existing custody agreement.” Id.
B. Change in Circumstances Affecting the Welfare of the Child
It is well established that “a trial court may order a modification of an existing
child custody order between two natural parents if the party moving for modification
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shows that a substantial change of circumstances affecting the welfare of the child
warrants a change in custody.” Shipman, 357 N.C. at 473 (cleaned up) (quoting
Pulliam, 348 N.C. at 619); see also N.C.G.S. § 50-13.7(a) (establishing that a child
custody order “may be modified or vacated at any time, upon motion in the cause and
a showing of changed circumstances by either party”). A substantial change in
circumstance can be supported by either allegations that the current custody
situation has an adverse effect on the child or by “showing a change in
circumstance . . . is, or is likely to be, beneficial to the child.” Pulliam, 348 N.C. at
620 (recognizing that an adverse effect upon a child constitutes a change in
circumstance, as does a change in circumstance that is beneficial to the child).
Importantly, a trial court’s guidepost is to “measure whether a change in custody will
serve to promote the child’s best interests.” Shipman, 357 N.C. at 474 (citing In re
Custody of Peal, 305 N.C. 640, 645–46 (1982)).
The trial court’s “examination of whether to modify an existing child custody
order is twofold.”3 Id. First, the trial court must determine there was a substantial
3 As the dissent notes, the opinion in Shipman describes two parts to the first prong
of the analysis. The entire test as described in Shipman is: The trial court’s examination of whether to modify an existing child custody order is twofold. The trial court must determine whether there was a change in circumstances and then must examine whether such a change affected the minor child. If the trial court concludes either that a substantial change has not occurred or that a substantial change did occur but that it did not affect the minor child’s welfare, the court’s examination ends, and no modification can be ordered. If, however, the trial court determines that there has been a substantial change in circumstances and that the change affected the welfare of the
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change in circumstances affecting the welfare of the child. Id. Trial courts must
make findings demonstrating a nexus “between the substantial change in
circumstances and the welfare of the child.” Id. at 478. If “the trial court determines
that there has been a substantial change in circumstances and that the change
affected the welfare of the child, the court must then examine whether a change in
custody is in the child’s best interests.” Id.
When determining whether there has been a substantial change in
circumstances affecting the welfare of the child “courts may only consider events
which occurred after the entry of the previous order, unless the events were
previously undisclosed to the court.” Woodring v. Woodring, 227 N.C. App. 638, 645
(2013); accord Shipman, 357 N.C. at 480 (recognizing that the substantial change in
circumstance must be based upon changes occurring after the entry of the original
custody decree that affects the welfare of the child). Unfortunately, “child custody
disputes are often hotly-contested, bitter affairs in which the innocent children . . .
suffer as confused and unwilling pawns.” Peal, 305 N.C. at 645. The statute
requiring a substantial change in circumstance affecting a child’s welfare, N.C.G.S.
§ 50-13.7, functions to limit vexatious litigation by “limiting the circumstances under
child, the court must then examine whether a change in custody is in the child’s best interests. If the trial court concludes that modification is in the child’s best interests, only then may the court order a modification of the original custody order.
357 N.C. at 474.
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which the custody of a child, once established, is subject to being changed.” Hibshman
v. Hibshman, 212 N.C. App. 113, 123 (2011).
The nature of child custody relationships is such that a substantial change in
circumstances is often based upon a series of discrete events or an ongoing pattern of
behavior that affects the welfare of the child. See, e.g., Shipman, 357 N.C. at 475–76
(summarizing the evidence supporting a substantial change in circumstance where a
parent demonstrated instability from frequent moves and inability to maintain a
stable home, violated the consent order by preventing the other parent from seeing
the child, and allowed the child to stay in an unsafe home); Peal, 305 N.C. at 646–47
(holding that the increased age of the child and the need for the two children to live
in the same household constituted a substantial change in circumstances). The Court
of Appeals noted an “absence of meaningful findings as to the circumstances that
existed at the time of the 30 October 2020 consent order” and claimed that such an
absence made appellate review difficult. Durbin, 292 N.C. App. at 394. However,
this observation ignores the fact that the 2020 Order was a consent order, which
created a baseline of how the parties agreed to act, from which the trial court could
measure a change in circumstances. More significantly, the trial court’s temporary
custody order and Modified Custody Order tell a clear story about the Father’s failure
to comply with the consent order terms to which he agreed.
The Modified Custody Order and the temporary custody orders—when
compared to the 2020 Order—provide ample evidence upon which we can conclude
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that a substantial change in circumstances occurred affecting the welfare of these
children. The findings in these orders demonstrate an increasing level of conflict
created by the Father about many aspects of the children’s lives but especially the
children’s medical needs and therapy appointments.
The trial court, in the 12 January 2022 temporary custody order, focused on
the ongoing dispute about the children’s medical conditions. The trial court made a
finding that despite his son’s diagnosed medical problem and the directive of the
parenting coordinator to maintain a medication log, the Father refused to assume
any responsibility for ensuring his twelve-year old son received his necessary asthma
treatments. The trial court concluded that the Father’s failure to comply with this
directive from the parenting coordinator “had an adverse effect on [his son’s] health
and was not in the child’s best interest.” Additionally, the trial court discussed the
Father’s resistance to taking the children to therapy “during his custodial time”
resulting in “numerous cancelled therapy appointments in 2021 and “half of all
remaining therapy appointments . . . cancelled for the rest of the year.” The Father’s
behavior continued even after he was held in contempt for interfering with the
children’s therapy.
Notably, the trial court made numerous findings documenting the Father’s
high-conflict relationship with the parenting coordinator who was appointed to help
de-escalate conflict within the familial relationship. N.C.G.S. § 50-91 (providing trial
courts with the authority to appoint parenting coordinators in high-conflict cases
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when the appointment is in the best interest of the child). The temporary custody
orders are replete with examples of the trial court having to order the Father to
behave appropriately toward the parenting coordinator including ordering him “not
to attempt to threaten and intimidate the [parenting coordinator].” To be sure,
conflict with the parenting coordinator, by itself, is not a substantial change in
circumstances unless it affects the welfare of the child.
But the trial court’s findings of fact demonstrate the Father’s deteriorating
ability to communicate in a manner that supports the needs and best interests of the
children. For example, the Father’s “tactics and animosity” towards the parenting
coordinator interfered with her ability to “be effective in her role going forward”; thus,
the trial court had to appoint a new parenting coordinator. Further, the Father
attempted to compel discovery of the parenting coordinator’s conversations with the
children’s therapist which the trial court noted “could potentially disrupt the
therapeutic relationship.”
The record in this case demonstrates deliberate and thoughtful effort on the
part of the trial court to de-escalate the conflict using parenting coordinators and
entering temporary orders before resorting to a custody order modification. This
process put the parents on notice that cooperation and de-escalation of conflict was
necessary to avoid a modification in the custody order. However, when that approach
did not return the relationship to a state where the welfare of the children was
guaranteed, the trial court appropriately modified the custody order.
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The unchallenged findings of facts in the Modified Custody Order, which are
binding on appeal, James v. Pretlow, 242 N.C. 102, 104 (1955), demonstrate that the
Father’s pattern of high-conflict behavior identified in the temporary custody order
continued, in large part, until the entry of the Modified Custody Order. Significantly,
the trial court made a finding that due to the acute nature of the child’s medical
issues, it was in the child’s best interest that the parents take responsibility for
ensuring “he takes his medicine consistent with the doctor’s recommendation and not
leave it to the child.” But the Father refused to follow this directive, and this had an
adverse effect on the child’s health. The trial court entered an order modifying the
custody because the “ongoing conflict between the parties [was] interfering with
important decisions being made that affect the health, education and welfare of the
minor children.”
The Court of Appeals majority concluded the conflict did not represent a
change in circumstance because the children were insulated from the conflict.
Durbin, 292 N.C. App. at 399. However, the Court of Appeals is wrong as a matter
of fact. The trial court made findings that the conflict affected one child’s daily
administration of asthma medication and the children’s weekly therapy
appointments. Further, the trial court made a finding that the Father shared
potential changes in custody with the children—without consulting the Mother and
before the trial court entered an order. The trial court found that this caused distress
to the children. These factual findings are unchallenged and thus binding on appeal.
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The Court of Appeals’ reliance upon Smith v. Dressler, 291 N.C. App. 197
(2023) and Conroy v. Conroy, 291 N.C. App. 145 (2023) led it to misunderstand when
a trial court’s “findings of fact support a substantial change in circumstances affecting
the welfare of the children.” Durbin, 292 N.C. App. at 395. Smith is not on point
here, and Conroy’s holding contradicts the majority’s arguments. First, Smith
presented a scenario where the trial court erred in finding a substantial change in
circumstance because the conduct that allegedly created the changed circumstances
was considered when the original custody order was entered. Smith, 291 N.C. App.
at 210–11; see also Sheperd v. Sheperd, 273 N.C. 71, 75 (1968) (recognizing that a
“decree of custody is entitled to such stability as would end the vicious litigation so
often accompanying such contests,” unless the trial court concludes that a change of
circumstances has occurred affecting the welfare of the child after the entry of the
order). The reason for requiring a change in circumstances is to prevent relitigating
conduct and circumstances that predate the first custody order. Newsome v.
Newsome, 42 N.C. App. 416, 425 (1979); see also Stanback v. Stanback, 266 N.C. 72,
76 (1965) (acknowledging a custody order is not “a final determination of the rights
of the parties touching the care and control of the child” but is subject to change only
based upon a changed circumstance). In this case, the substantial change in
circumstances must be based upon changes between the 2020 Order and the Modified
Custody Order. And the trial court’s findings are based upon conduct and
circumstances that occurred after the entry of the 2020 Order. The Father’s conduct
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related to therapy appointments, medicine, and communication with the other parent
all occurred in 2021 and 2022 after the entry of the consent order and is properly
considered as a change in circumstance.
The Court of Appeals worked to distinguish Conroy, but that case should have
directed the majority to an opposite conclusion than the one it reached. In Conroy,
the trial court made findings of fact that the mother behaved erratically, failed to
recognize her own poor decision making, and displayed a lack of judgment for the
safety and welfare of the children. Conroy, 291 N.C. App. at 160. Similar to the
situation here, the mother in Conroy argued that the trial court erred by finding her
behavior constituted a substantial change because “she has always had poor
interpersonal relationships, her overall behavior towards [f]ather has been erratic
and unpredictable for years, and she has often made disparaging remarks about
[f]ather while the children were present.” Id. at 162 (cleaned up). However, a history
of poor communication and high conflict may still represent a substantial change in
circumstances when “those communication problems” and conflicts “are presently
having a negative impact on [the children’s] welfare.” Id. at 164 (cleaned up) (quoting
Laprade v. Barry, 253 N.C. App. 296, 304 (2017)). The Conroy court rejected nearly
identical arguments to the ones made here.
In this case, the Father argues that his behavior was the same and, therefore,
could not constitute a substantial change in circumstances. See Stanback, 266 N.C.
at 76 (“A judgment awarding custody is based upon the conditions found to exist at
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the time it is entered . . . [and] is subject to such change as is necessary to make it
conform to changed conditions when they occur.”). However, the trial court noted an
increasing pattern of conflict and the Father’s failure to attend to his son’s medical
needs, particularly his asthma care. When the failure to monitor the son’s medication
results in the son missing doses and thus requires him to seek additional medical
care, it is plain that the conflict is presently having “an adverse effect on [the child’s]
health and [is] not in the child’s best interest.” Thus, we conclude that the binding
findings of fact support the conclusion that there was a substantial change in
circumstances justifying modification of custody.
C. Best Interest of the Child
Having concluded that the trial court’s findings of fact support the holding of
the trial court that a change in circumstance affecting the welfare of the child
occurred, we now consider whether a change in custody is in the best interest of the
children. See Shipman, 357 N.C. at 475 (acknowledging a two-part analysis—
whether a change in circumstances affected the welfare of the children and whether
a change in custody is in the child’s best interest). The Father argues that the trial
court’s findings failed to establish that the change in custody was in the best interest
of the child. We disagree.
In the Modified Custody Order, the trial court made a finding of fact that “the
ongoing conflict between the parties is interfering with important decisions being
made that affect the health, education and welfare of the minor children.” Further
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the trial court concluded that it was in the child’s best interest for the parent to take
responsibility to ensure the child consistently receives his prescribed asthma
medication. The trial court concluded that the refusal to comply with the parenting
coordinator directive regarding administration of medication “had an adverse effect
on [the child’s] health and was not in the child’s best interest.” Importantly, the trial
court concluded that the conflict between the parties was also not in the children’s
best interest and that the change in custody implemented in the temporary custody
order and ratified in this Modified Custody Order was reducing the conflict.
Because the trial court had the “opportunity to see and hear the parties,”
consider the impact of this ongoing conflict on the children, and the trial court made
findings that the Modified Custody Order was in the best interest of the children, we
perceive no abuse of discretion in this Modified Custody Order. See Hamlin v.
Hamlin, 302 N.C. 478, 485–86 (1981) (recognizing the broad discretion vested in trial
judges involved in child custody cases because they have the opportunity to see and
hear the parties and witnesses).
III. Conclusion
A substantial change in circumstances affecting the welfare of the children is
required before a trial court may modify an existing child custody order. N.C.G.S.
§ 50-13.7. We hold that a party’s escalating level of conflict and unwillingness or
inability to communicate in a reasonable manner about the health, education, and
welfare of minor children may constitute a change in circumstances affecting the
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welfare of the child. When an increasingly contentious pattern of behavior risks
injury to the child, a court may find a substantial change in circumstances.
Here, the trial court made findings that the Father’s escalating behavior and
unwillingness to communicate with the Mother or parenting coordinator to advance
the best interests of the children constituted a substantial change in circumstances.
The Court of Appeals erred when it held that the modification was not supported by
a substantial change in circumstance affecting the child’s welfare. For that reason,
we reverse the Court of Appeals and remand with instructions to reinstate the trial
court’s order modifying the child custody order.
REVERSED.
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Berger, J., dissenting
Justice BERGER dissenting.
The custody arrangement entered by the trial court may very well be in the
best interest of these children. My concern is that the majority has eliminated the
requirement that a party seeking to modify a custody order make two distinct
showings before that inquiry is made: (1) that a substantial change of circumstances
has taken place since entry of the prior order, and (2) that change affects the welfare
of the child. N.C.G.S. § 50-13.7(a) (2023); Shipman v. Shipman, 357 N.C. 471, 474
(2003) (“If the trial court concludes . . . that a substantial change did occur but that
it did not affect the minor child’s welfare, the court’s examination ends, and no
modification can be ordered.”). Because the majority fails to properly apply this test
to the facts here, I respectfully dissent.
The procedural history in custody and support cases is critical, and without an
understanding of what the parties seek to modify, the Shipman test is meaningless.
The parties entered a Consent Order for Child Custody and Child Support on 30
October 2020. Plaintiff filed a Motion to Modify this order on 8 October 2021.
Thereafter, temporary custody orders were entered on 12 January 2022 and 9
February 2022. The trial court specifically stated that both of these orders were
“temporary and non-prejudicial.” A full hearing on plaintiff’s motion to modify was
held in May 2022.
So, what changed between October 2020 and the full custody hearing in May
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2022?
The majority frames the issue here as “whether an escalating pattern of
conflict between the parents and an unwillingness on the part of a parent to
communicate with the other parent and parenting coordinator to advance the welfare
of the children constitutes a substantial change in circumstances justifying a
modification in custody.” But custody shouldn’t be changed simply because a party
wasn’t polite to the parenting coordinator.
“The law requires the moving party to prove a difference between the current
circumstances and the circumstances that existed at the time of the previous order,”
3 Suzanne Reynolds, Reynolds on North Carlina Family Law § 8.44(a) (6th ed. 2021).
Both the trial court and the majority here fail to engage in a meaningful comparison
between the circumstances that existed in May 2022 and those that existed at the
time of the 30 October 2020 order. See Tucker v. Tucker, 288 N.C. 81, 88-89 (1975)
(that “friction between the parents had existed from the date of the first custody
order,” was not sufficient evidence “to support a finding that there had been a
substantial change of circumstances affecting the welfare of” the child.).
To be sure, the trial court made a finding under Shipman’s first prong, focusing
its changed circumstance analysis almost entirely on the “high-conflict” nature of this
case, the “ongoing conflict” concerning decision making and information exchange,
the conflict between defendant and the parenting coordinator, and issues scheduling
appointments for the minor children. But the parties have had a parenting
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coordinator since entry of the original custody order in 2017, as the majority
recognizes, and high conflict is an ongoing condition that has persisted throughout
this custody dispute.1 As the trial court found in the permanent custody order,
“neither party seems capable of reducing the conflict.”
But even if we assume Shipman’s first prong was satisfied, the majority has
not demonstrated that the trial court’s findings support a conclusion that the conflict
between the parties, and especially the conflict with the parenting coordinator,
affected the welfare of the children.2 In fact, the majority doesn’t cite to any finding
in the trial court’s permanent order concerning impact on the children. Instead, the
majority “compare[s]” temporary orders,3 and finds as fact an issue with medication
delivery that the trial court did not include in its permanent custody order.
1 High conflict is the reason parenting coordinators exist at all, see N.C.G.S. § 50-92 (2023),
and by statute, a “high conflict case” is one in which there is an ongoing pattern of any of the following: a. [e]xcessive litigation[,] b. [a]nger and distrust[,] c. [v]erbal abuse[,] d. [p]hysical aggression or threats of physical aggression[,] e. [d]ifficulty communicating about and cooperating in the care of the minor children[, or] f. [c]onditions that in the discretion of the court warrant the appointment of a parenting coordinator.N.C.G.S. § 50-90(1) (2023). 2 I note that the majority begins its opinion correctly citing our precedent under Shipman but
alters course in its analysis by incorrectly suggesting that the second prong of Shipman includes consideration of the best interest of the child. This is only done after the first two prongs are satisfied. See Shipman at 474 (“If, however, the trial court determines that there has been a substantial change in circumstances and that the change affected the welfare of the child, the court must then examine whether a change in custody is in the child’s best interests.”). 3 Ordinarily, factual determinations entered without prejudice are not binding and provide
an opportunity for future litigation on those same facts. See Marsh v. Marsh, 259 N.C. App. 567, 570 (2018) (“An order is without prejudice if it is entered without loss of any rights; in a way that does not harm or cancel the legal rights or privileges of a party.” (cleaned up)). What
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In context, the trial court’s finding in the temporary order was as follows:
16. There has been an ongoing dispute between the parties about the children’s medical conditions and the consistent administration of prescribed medications. Specifically:
....
c. On July 29, 2021, the PC issued a directive on the medication issue. The email said, in relevant part, “I am going to ask you both to keep a medication administration chart while [the minor child] is with you that will indicate: [t]he medication administered, the amount, the date and the time.”
d. Despite [the minor child’s] diagnosed medical problems, and the PC’s directive, the conflict over the child’s medication continued. Defendant did not maintain the medication log, made the child maintain the medication log, told Plaintiff and the PC that the child (who is 12) was responsible for his own medication, and argued with both Plaintiff and PC in multiple emails rather than simply make sure [the minor child] received his medication and maintaining the log so that both parents could make sure that they were consistent and coordinated in their administration of medication for [the minor child].
e. Defendant’s refusal to comply with the PC’s directive had an adverse effect on [the minor child’s] health and was not in the child’s best interest.
After the full hearing on modification took place, the trial court made the
following relevant findings in the permanent custody order which are nearly identical
to the temporary order:
do findings of fact entered without prejudice mean moving forward? The majority does not say.
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21. There has been an ongoing dispute between the parties about the children’s medical conditions and the consistent administration of prescribed medications. Specifically:
g. On July 29, 2021, the PC issued a directive on the medication issue. The email said, in relevant part, “I am going to ask you both to keep a medication administration chart while [the minor child] is with you that will indicate: [t]he medication administered, the amount, the date and the time.”
h. Despite [the minor child’s] diagnosed medical problems, and the PC’s directive, the conflict over the child’s medication continued. Defendant did not maintain the medication log, made the child maintain the medication log, told Plaintiff and the PC that the child (who is 12) was responsible for his own medication, and argued with both Plaintiff and PC in multiple emails rather than simply make sure [the minor child] received his medication and maintaining the log so that both parents could make sure that they were consistent and coordinated in their administration of medication for [the minor child].
Noticeably absent from the permanent order is the finding that defendant’s
refusal to comply with the parenting coordinator’s directive affected the child’s
health. Perhaps the trial court purposefully declined to find an impact, or perhaps
the finding was unintentionally omitted. Regardless of the reason, the finding is not
in the permanent custody order, and the majority has based its reasoning on a fact
that the trial court specifically stated was “non-prejudicial.”
This matter should be returned to the trial court for entry of an order that
satisfies N.C.G.S. § 50-13.7 and Shipman. If the evidence did not meet this high bar,
the prior custody order should be reinstated.
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